Third Series Vol. VIII Part 1 ISSN 0010-003X No. 223 Price £12.00 Spring 2012 THE COAT OF ARMS an heraldic journal published twice yearly by The Heraldry Society THE COAT OF ARMS The journal of the Heraldry Society Third series Volume VIII 2012 Part 1 Number 223 in the original series started in 1952 NAMES AND ARMS CLAUSES Howard v Howard-Lawson Jeremy Goldsmith When a testator wishes a gift to be made only on condition that the beneficiary adopts his surname and armorial bearings he may insert a 'name and arms clause' into his will to give effect to this. Such a condition will be legally binding so long as it is sufficiently clear and is capable of being performed.1 Commonly found in nineteenth- century wills, when the courts developed much of the law on this subject, name and arms clauses are now rather more unusual. In 2011 the Chancery Division of the High Court was asked to consider the validity of a name and arms clause in the case of Howard v Howard-Lawson} The Defendant, Sir John Howard-Lawson, Bt., had sold the ancestral family seat of Corby Castle in Cumbria. The Claimant, his son, Philip William Howard, claimed his father lacked the authority to do so as he had failed to comply with the requirements of a name and arms clause in the will of his benefactor. The Corby estate had come into the hands of Sir John under the will of his great-grandfather Philip John Canning Howard ('the testator'), dated 19 February 1930, who died on 22 April 1934. This branch of the Howards descends from Thomas Howard, 4th Duke of Norfolk (1536-1572) through his youngest son Lord William Howard (1563-1640) (see Table 1). The latter purchased the castle in 1625 (not 1611 as is often claimed) and it remained in the family's possession until sold by Sir John in 1994.3 Clause 8 of the 1930 will specified that any member of the family who had a claim to Corby Castle was required to 'use and bear the surname and arms of Howard' within one year of becoming entitled to inherit. Any claimant who was not a Howard would be required to 'apply for and endeavour to obtain the Royal Licence or take such other steps as may be requisite to authorise the user and bearing of the said surname and arms' (paragraph 11 of the judgment). Again this was to be done within one year of the beneficiary becoming entitled under the will. If he should 'refuse or neglect' to do this in the year he would forfeit his interest (paragraph 12). The testator's only child was a daughter, Ursula, who married Sir Henry Joseph Lawson, Bt. Ursula died on 5 January 1960 and it was necessary for her son William 1 Re Croxon, Croxon v Ferrers [1904] 1 Ch 252; Re Neeld, Carpenter v Inigo-Jones [1962] Ch 643. 2 [2011] EWHC 63 (Ch); [2011] All ER (D) 172 (Jan). 3 Cumbria Record Office, D HC 2/26/1; Land Registry, Title No. CU104621 (Corby Castle). The Coat of Arms 3rd ser. 8 (2012), no. 223, pp. 27-32. 27 THE COAT OF ARMS Lawson to comply with the name and arms clause in his grandfather's will. He declined to do so in the belief that the clause was invalid due to the uncertainty of its meaning. This itself became the basis of litigation, as the result of which Wilberforce J (later Lord Wilberforce) determined that the clause was valid and William Lawson had forfeited his right to the estate.4 Entitlement then passed to William's son, John Philip Lawson (later Sir John Howard-Lawson, Bt., the Defendant). The time for him to comply with the clause ran from 5 January 1961 until 5 January 1962, following his father's forfeiture. Wilberforce J's judgment was issued only on 29 March 1961, but an approach was made to Walter Verco, Chester Herald at the College of Arms, during the summer of that year. An application was made to the Home Office in October 1961 for permission to lodge the formal petition for a Royal Licence and this was granted the following month. Unfortunately the process was held up by Denis Waterkeyn, the applicant's cousin, who had agreed to petition jointly with the Defendant (to save costs). He only supplied the necessary pedigree information in December 1961, apparently 'causing annoyance to the defendant [Sir John] and embarrassment to Chester Herald in his dealings with the Home Office' (paragraph 23). The petition was sent to John Howard for signature on 15 February 1962 and returned to the College of Arms. Once Garter King of Arms (Sir Anthony Wagner) had given his approval this was forwarded to the Home Office. On 26 April 1962 the Royal Licence was signed and then issued on 3 May 1962. The change of name was announced in the London Gazette on 1 June 1962.5 The exemplification of the arms, i.e. the issue of a document by the Kings of Arms establishing the arms to be borne, followed on 10 September 1962 and was recorded in the College of Arms.6 Thus the granting of the Royal Licence and the exemplification of arms both occurred after the expiry date of 5 January 1962 by which the clause required the change of name and arms. After succeeding to the Lawson baronetcy in 1990, Sir John took the name Howard-Lawson by Royal Licence dated 31 March 1992, which also entitled him to quarter the arms of Howard and Lawson, although this has no bearing on the present case.7 The Claimant, Philip Howard, asserted that his father had failed to comply with the name and arms clause within the specified time period, forfeiting his rights which then passed to Philip himself. If that view was upheld the Defendant would have lacked the power to sell Corby Castle. However, Proudman J, judging the case in the High Court, found that Sir John (the Defendant) did not refuse or neglect to make the application to obtain the licence. As she goes on to state, 'in my judgment all that the clause requires is that the beneficiary should apply within the year and thereafter genuinely pursue the application' (paragraph 54). This is precisely what Sir John did. 4 Re Howard's Will Trusts [1961] 1 Ch 507. 5 London Gazette, Issue 42694, p. 4436. 6 CA record Ms Grants 125/159. 7 London Gazette, 6 April 1992, Issue 52884, p. 6121. 28 Thomas Howard, 4th Duke of Norfolk Margaret Audley (1536-1572) Lord William Howard Elizabeth Dacre (1563-1640) Sir Francis Howard Mary Widdrington (1588-1660) William Howard Jane Dalston (d. 1708) Thomas Howard Barbara Lonsdale (died 1740) Philip Howard Ann Witham (1730-1810) Henry Howard Catherine Mary Neave (1757-1842) Philip Henry Howard Elizabeth Minto Canning (1801-1883) TESTATOR Philip John Canning Howard Alice Clare Constable-Maxwell (1853-1934) Sir Henry Joseph Lawson, 3rd Bt. Ursula Mary Howard (first husband) (1879-1960) Sir William Howard Lawson, 5th Bt. Joan Eleanor Stamer (1907-1990) DEFENDANT/ Sir John Philip Howard-Lawson, Jean Victoria Marsh RESPONDENT 6th Bt. (born 1934) CLAIMANT/ Philip William Howard APPELLANT (born 1961) Table 1 : Descent of the testator, claimant and defendant in Howard v Howard-Lawson THE COAT OF ARMS There was also the question of whether Sir John did 'use and bear' the name and arms of Howard within the one-year period. For this to be resolved the Court had to determine whether using the arms and using the name were two separate requirements both needing to be performed (as the Claimant argued) or whether they were two aspects of a single obligation. The judge noted that once lawful authority for the assumption of the name and arms had been obtained, use of them became two separate requirements (paragraph 46). However, Sir John could not have used and borne the Howard arms before the Royal Licence was granted and the arms exemplified at the College of Arms since these formalities were not completed until the months following the expiry of the one-year period. It would have been an offence under the Law of Arms to use the Howard armorial bearings without the necessary authority.8 Consequently, the trial judge held that Sir John had satisfied the clause by attempting to obtain the Royal Licence and the 'use' of the surname and arms were not necessary in this case (paragraphs 44-45). Of interest to armorists, Proudman J also considered the ways in which arms might be 'used'. These included 'carving the arms into furniture or having them engraved on a signet ring or writing paper', as had been held in the earlier case of Croxon.9 However, she considered that the beneficiary might now 'digitally represent them on a mug, tea towel or table mat' (paragraph 42). Furthermore, she stated (paragraph 43): Now that arms are no longer borne in battle, there is no formal occasion on which the Howard arms could be borne prior to such exemplification. They could not be published in the Peerage and Baronetage or painted up in the hall of a Livery Company or Inn of Court. Significantly, if the person concerned already had a coat of arms, he would not be able to use the Howard arms instead of or quartered with his own. Until exemplification only his own arms would appear in the reference books and all such other formal places where such arms could be said to be used and borne.